On the same week that the first doses of a COVID-19 vaccine were administered in the United States and a second vaccine received emergency use authorization from the Food and Drug Administration (FDA), the U.S. Equal Employment Opportunity Commission (EEOC) updated its ongoing Guidance on COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws (“Guidance"), addressing for the first time many questions employers have regarding COVID-19 vaccination and the workplace.
Importantly, the EEOC confirmed that employers may mandate that employees receive the COVID-19 vaccine when it becomes available to them, subject to certain legally protected exceptions for disabilities under the Americans with Disabilities Act (ADA) and for sincerely held religious beliefs under Title VII of the Civil Rights Act. In a prior Pandemic Preparedness Guidance issued by the EEOC in 2009 during the H1N1 flu outbreak – and
updated in March of this year in response to the COVID-19 pandemic – the approach suggested by the EEOC, at least with respect to the flu vaccine, was for employers to offer the vaccine on a strictly voluntary basis: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” Notably, the EEOC did not include such a suggestion with regard to the COVID-19 vaccine, as it appears the EEOC was careful not to discourage employers from instituting mandatory COVID-19 vaccination programs. Instead, the EEOC outlined a road map for employers that may want to require employees to get COVID-19 vaccinations on how they may do so without violating federal EEO laws and also answered other vaccination questions
in the form of additional Q&As that can be found in Section K of the Guidance. Below are some key takeaways from the Guidance:
Administration of an FDA-approved or -authorized COVID-19 vaccine to an employee alone is not a “medical examination” under the ADA. Because vaccination is not a procedure that seeks information about an individual’s impairments or current health status, vaccination itself does not implicate the ADA. Vaccination itself also does not implicate the Genetic Information Nondiscrimination Act (GINA) because an employee’s genetic information is not being used to make employment decisions, and no genetic information is being acquired by
the employer or disclosed by the employee. Thus, the vaccine may be administered by an employer or by a third party with whom the employer contracts to administer the vaccine to employees.
Unlike the administration of the COVID-19 vaccine itself, mandatory pre-vaccination medical screening questions may implicate the ADA. The Guidance notes that, according to the Centers for Disease Control and Prevention (CDC), healthcare providers should ask certain questions before administering a vaccine to ensure that there is no medical reason or “contraindication” that would prevent a person from safely receiving the vaccine. However, because these
pre-vaccination screening questions may elicit information about a disability, if they are required and asked by the employer or its contracted vendor, they are likely subject to the ADA’s standards for disability-related inquiries. That is, if an employer requires employees to receive the COVID-19 vaccine from the employer or contracts with a third party to administer a mandated vaccine, then before asking any such pre-vaccination medical screening questions, the employer must show that the inquiries are “job-related and consistent with business necessity,” which can be shown if the employer has a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health
or safety of her/himself or others.
If, on the other hand, an employer makes vaccination voluntary, then these ADA restrictions would not apply to the pre-vaccination screening questions so long as the employee’s decision to answer pre-screening, disability-related questions is also voluntary. In that case, if an employee chooses not to answer those questions, the employer may decline to administer the vaccine but may not intimidate, threaten or retaliate against the employee for refusing to answer any questions.
Also, if an employer mandates that an employee receive vaccination from a third
party that does not have a contract with the employer (e.g., from a pharmacy or the employee’s own healthcare provider), any medical inquiries would not be attributable to the employer, and the ADA restrictions on disability-related inquiries would not apply to the screening questions made by those third parties. Thus, an employer that decides to mandate COVID-19 vaccination but has employees get the vaccine from pharmacies or the employees’ personal healthcare providers may avoid this particular ADA issue.
Regardless of whether vaccination is mandatory or voluntary, employers can ask or require employees to show proof of vaccination. Because there are many reasons that
may explain why an employee has not been vaccinated, including reasons that are not disability-related, simply asking or requiring an employee to show proof of vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry prohibited under the ADA. However, asking an employee to explain why he/she did not receive the vaccine may elicit information about a disability and would be a disability-related inquiry subject to the ADA standard that the inquiry be “job-related and consistent with business necessity.” For this reason, the EEOC advises that employers that ask employees to provide proof of vaccination also caution employees not to disclose or include any personal medical information beyond proof of vaccination in order to
avoid implicating the ADA.
Certain mandatory pre-screening questions may implicate GINA. While it is not clear at this time if potential genetic conditions will be included in screening checklists for vaccine medical contraindications, if administration of a mandatory vaccine will require pre-screening questions that elicit genetic information (including information about family members’ medical histories), such inquiries may violate GINA. Thus, if pre-vaccination questions do include such questions, then the EEOC suggests that employers that want to ensure employees have been vaccinated may opt to request proof of vaccination from a pharmacy or the employee’s own
healthcare provider, instead of administering the vaccine themselves or through a contracted vendor, and also warn employees not to provide genetic information as part of that proof.
Employers who mandate the vaccine may have to accommodate employees who cannot get a vaccine because of a disability. Employers are permitted to maintain a workplace free from certain threats to the health and safety of employees. However, if an employee is unable to receive the COVID-19 vaccine due to a medical condition constituting a disability, then under the ADA, the employer can only exclude the employee from the workplace if it can show that the unvaccinated employee would pose a
“direct threat” due to “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation” absent undue hardship (significant difficulty or expense). In other words, employers must attempt to accommodate an employee who cannot receive the vaccine due to a disability, unless there is no reasonable way to do so.
Here, employers should conduct a case-by-case, individualized assessment of four factors to determine whether a particular employee poses a direct threat by being unvaccinated:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
If the employer concludes that there is a direct threat, which can include a determination that an unvaccinated individual will expose others to the virus at the worksite, that cannot be eliminated or at least mitigated to an acceptable level by a reasonable accommodation in the workplace, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the employee. Rather, if an employer is unable to accommodate an exemption request in a manner that would allow the unvaccinated employee to work at the worksite (e.g., continued mask wearing, continued temperature and symptom monitoring, maintaining social distancing,
having the employee work in another work area on-site, placing the employee in an alternative job that would make vaccination less critical, etc.), the employer must still assess whether other types of accommodations that do not require the employee’s physical presence at the worksite, such as telework or a temporary (but not indefinite) leave of absence, are reasonable and possible under the circumstances. Thus, as with any request for accommodation under the ADA, if an employee requests to be exempt from a vaccination requirement for a disability-related reason, employers and employees must engage in a flexible, interactive process to identify whether workplace accommodation options exist that do not constitute an undue hardship. The Guidance states that this process should include
determining whether supporting documentation about the employee’s disability is needed and considering possible accommodation options given the nature of the workforce, the employee’s position and job duties, facts about the particular work conditions and environment in which the employee operates, the prevalence in the workplace of employees who already have received a COVID-19 vaccination, and the amount of contact with others, whose vaccination status could be unknown and/or who are at increased risk of severe illness from COVID-19. The Guidance further advises that employers may review and rely on the recommendations and guidance offered by the CDC and OSHA when evaluating whether there is an effective accommodation that would not impose an undue hardship.
Employers who mandate the vaccine may have to accommodate employees who cannot get a vaccine because of a sincerely held religious belief. If an employee indicates that his/her sincerely held religious belief, practice or observance prevents the employee from getting vaccinated, the employer must provide a reasonable accommodation under Title VII, unless the accommodation poses an undue hardship (which, for religious beliefs, has been defined as “having more than a de minimis cost or burden on the employer”). Because a “sincerely held religious belief” may be interpreted broadly to protect religious beliefs and practices that may be unfamiliar to the employer, the
EEOC advises that employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employer has an objective basis for questioning the religious nature or sincerity of the belief, practice or observance, the Guidance states that the employer would be justified in requesting additional supporting information. If an employee cannot get vaccinated for COVID-19 because of a sincerely held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean that the employer may automatically terminate the employee, which may depend on whether any other rights apply under other EEO laws or
federal, state and local authorities.
Other Legal and Practical Considerations
Beyond the EEOC’s Guidance, there are other legal and practical considerations that employers should contemplate when deciding whether they should mandate the COVID-19 vaccine, including but not limited to:
- While OSHA has not yet included an employee vaccine mandate in its recommendation for how to ensure a safe workplace during the COVID-19 pandemic, during the 2009 H1N1 flu outbreak, OSHA did take the position that employers may require employees to submit to flu vaccines, provided that employees are “properly informed of the benefits of vaccinations.” Potentially relevant, however, OSHA also cautioned that, with respect to employer-mandated vaccination policies, “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of [OSHA] pertaining to whistleblower rights.”
- If an employer has any employees represented by a union, it is likely that the implementation of any COVID-19 vaccination requirement will be a mandatory subject of bargaining about which the employer will have to negotiate and reach an agreement with the union before implementing. While unions may not necessarily be opposed to vaccination, some may balk at any policy that might lead to discipline or termination if some employees do not get the vaccine.
- Even in a non-union setting, employers will need to allow for certain “protected concerted activities” under Section 7 of the National Labor Relations Act such as groups of employees discussing the vaccination policy among themselves and/or banding together to oppose
vaccination. Disciplining or terminating employees who fail to comply with a mandatory vaccination policy could lead to an unfair labor practice charge before the National Labor Relations Board if they engage in such protected activities.
- Employers should also consider the potential for workers’ compensation claims should any employee have an adverse reaction to an employer-mandated vaccine.
- In addition to legal considerations, employers also need to be prepared for potential pushback and employee morale issues associated with mandating vaccination. While the public’s willingness to receive a COVID-19 vaccine has increased over the past two months, there still appears to be a substantial percentage of Americans
who would not get vaccinated at this time for any number of reasons beyond those that might require a reasonable accommodation, including more secular, philosophical or personal opposition to vaccination generally or a concern about the COVID-19 vaccine specifically. Employers will need to be sensitive to and give serious consideration to such concerns from their employees and the problems that might arise if a significant portion of their workforce is not willing to receive a vaccine when it becomes available to them, including being put in the difficult position of adhering to and enforcing the mandate or deviating from the mandate for certain employees but not for others, which may increase the risk of discrimination claims.
- Employers should also
keep in mind that the COVID-19 vaccine is not going to be a fail-safe for providing a safe working environment, at least in the short term, and employers likely will have to continue many of the same safety protocols for a period of time even after a vaccine becomes generally available. This should factor into an employer’s cost-benefit analysis of whether a mandatory policy is right for its business and also if a mandate is truly necessary for the business in light of continued mask wearing, physical distancing, remote work, and other recommended steps to prevent the spread of COVID-19 in the workplace that can be expected for the foreseeable future and in light of the other legal and practical concerns discussed above.
- Regardless of whether
employers decide to make vaccination voluntary or mandatory, employers should also consider steps they can take to encourage employees to get vaccinated, including developing a campaign to educate employees and promote vaccination (e.g., hosting education sessions regarding the safety, efficacy and benefits of vaccination, putting up posters in high-traffic areas about the importance of vaccination, posting information and articles regarding vaccination on the company intranet, posting information about when and where employees can get the vaccination, sending a company email encouraging vaccination, etc.) and providing paid time off for employees to get the vaccine and recover from any potential side effects.
Similar to most employer decisions during this pandemic, this is a new and rapidly developing area that is going to require employers to remain nimble and be willing to adapt and respond to the constantly changing legal, scientific, political and public opinion landscape. We will continue to closely monitor new laws, regulations and guidance from federal, state and local authorities regarding COVID-19 vaccination and provide updates as they become available.